An appeal is, generally, an opportunity for an unsuccessful party to have a panel of judges review the trial (or motion) judge's decision as to matters of law.
Issues that were not raised before the court of first instance are not normally considered on appeal because the record seldom deals squarely, or at all, with such new issues.
This week's Court of Appeal decision in Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350 restates the general prohibition on new issues at appeal and sets out the test as to when such new matters may be considered by the appellate court:
"[3] In Ross v. Ross (1999), 181 N.S.R. (2d) 22, the Nova Scotia Court of Appeal set out the test concerning receiving arguments for the first time on appeal. The court said that such an argument, "should only be entertained if the court of appeal is persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at trial". The rationale for the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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